Kolupar v. Wilde Pontiac Cadillac, Inc.

*30SHIRLEY S. ABRAHAMSON, C.J.

¶ 57. 0dissenting). This is a consumer protection case under a consumer protection law. The consumer in this case has been victimized twice: once by the defendants, the second time by the legal system.

¶ 58. By affirming the fees awarded by the circuit court, the majority opinion contravenes the spirit and letter of the statutes that "were designed to keep open the courthouse doors to persons whose claims do not justify the retention of a lawyer unless, by prevailing, that person can recover his or her attorneys fees."1

¶ 59. Judge Fine's vigorous dissent in the court of appeals criticizes the defendants for taking advantage of Ms. Kolupar in the car transaction and in delaying and obfuscating the trial gives the reader the flavor of the case.2 Judge Fine wrote:

Wilde Pontiac Cadillac, Inc., and its employee Randall Thompson not only took advantage of an eighteen-year-old woman but they also delayed and obfuscated the litigation process. Indeed, from my review of the record, I believe that they pursued a scorched-earth Rambo-litigation policy that has no place in our justice system.3

¶ 60. The circuit court compounded the auto dealer's harm to Ms. Kolupar by failing to properly exercise its discretion in awarding reasonable attorney fees and costs.4

*31¶ 61. The majority opinion delivers the final blow to Ms. Kolupar by affirming the circuit court's erroneous discretionary award of fees.

¶ 62. The majority shifts the blame to Ms. Kolu-par for the low award, asserting that the record before the circuit court had a "dearth of hard facts."5 And whose fault was that?

¶ 63. The dearth of hard facts was caused by the circuit court's refusal to admit Ms. Kolupar's documentation in support of her attorney's fees. Why weren't these documents admitted? Because the circuit court ruled that the submission was late under local court rules. I agree with Judge Fine that the circuit court incorrectly applied Local Rule 365. As Judge Fine wrote:

The rule, however, governs "motions"; it does not apply to exhibits offered at trials or evidentiary hearings. Kolupar never filed a motion for attorneys fees; the statute permits them and she demanded them in her complaint. Indeed, the trial court sua sponte set the hearing on the attorney-fees matter: 'We'll all meet back here on the date set for trial to the court on May 13th and we'll consider the attorneys' fee issue."6

¶ 64. And even if this local rule applied in the present case (which it does not) and the documents were a few days late, the circuit court's sanction of refusing to admit the documents was too harsh and it was an erroneous exercise of discretion.

¶ 65. Does the majority opinion address the issue of the applicability of the local rule? No! The majority begs off by again placing the blame on Ms. Kolupar, *32claiming that Ms. Kolupar did not present the issue in her petition for review and therefore did not preserve the issue for appeal as a matter of right.7

¶ 66. I disagree. The petition for review presented the following issue: "Did the trial court erroneously exercise its discretion by failing to apply and consider the correct legal standard?" Included within the stated issue is the question whether the local rule was correctly applied. The petitioner is not required to set forth in the petition for review every argument that she will make in this court.

¶ 67. Moreover, the arguments of the parties did not focus on the state of the record. Neither party complains about the lack of documentation of the attorney's work in the record. As Judge Fine pointed out, "No one [that is, neither the parties nor the circuit court] disputes that Kolupar's lawyer did what he said he did and that his hourly rate was reasonable."8

¶ 68. Rather, the briefs debate whether the circuit court considered the correct factors in reaching its decision. Ms. Kolupar's position is that the circuit court did not consider the correct legal standards. The defendant's position is that the circuit court considered the correct factors. Why doesn't the majority opinion hold that the defendants waived any objection to the lack of documentation of attorney fees in the record and to Ms. Kolupar's supposed failure to assert that the local *33rule was improperly applied?9 If there is waiver, this court may proceed to decide the substantive issue.

¶ 69. The circuit court based its award of fees on the comments of the discovery master, which were not supported by any facts relating to the work of Ms. Kolupar's attorneys. Judge Fine properly questioned the circuit court's and court of appeals' deferral to the discovery master and the failure of the circuit court to consider on the record any of the factors relating to fees. The former judge appointed to be a discovery master was not appointed to assess the fees. He held no hearings, examined no evidence, and made no findings in regard to fees. Nevertheless, he offered an opinion on fees, which apparently significantly influenced the circuit court. Judge Fine wrote, somewhat harshly but not without justification, as follows:

Yet, the Majority defers to the unfocused musings by both a former judge, appointed to oversee a small part of the discovery disputes in this case, and the trial court.
The trial court here never considered on the record any of the factors [in determining attorney fees]. Rather, it deferred to the off-hand assessment of the former judge who, as the Majority notes, was only appointed to be a discovery master. The trial court's abdication of its responsibility was palpable, as reflected by the transcript in the record.. . . Wilde suggested the $15,000 figure, and the former judge adopted it without any analysis beyond his view that more was not warranted *34because, with Kolupar's acceptance of the $6,600 offer of settlement, the case was 'just barely above a small claims case.'10

¶ 70. The discovery master erred in viewing the amount of recovery as determinative of reasonable attorney fees. The amount of the recovery is not a measure of what the fee-shifting award should be in consumer protection cases.11

¶ 71. Because the circuit court excluded Ms. Kolupar's supporting documents, relied on the master's unsupported proposed fee of $15,000, and failed to consider the factors the majority sets forth, it erroneously exercised its discretion in awarding only $15,000 in fees. I would reverse the judgment and remand the cause for reconsideration of attorney fees as well as costs, guided by the majority opinion's discussion of fees.

¶ 72. Accordingly, I dissent.

¶ 73. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

Kolupar v. Wilde Pontiac Cadillac, Inc., 2003 WI App 175, ¶ 32, 266 Wis. 2d 659, 668 N.W.2d 798 (Fine, J., dissenting).

Kolupar, 266 Wis.2d 659, ¶ 23 (Fine, J., dissenting).

Id.

The method of evaluation of fees is set forth in the majority opinion, ¶¶ 24-29.1 agree with the lodestar approach.

Majority op., ¶ 31. See also, majority op., ¶ 5 (complaining about the sparse information).

Kolupar, 266 Wis. 2d 659, ¶ 28 (Fine, J., dissenting).

Majority op., ¶ 31. The majority could, of course, exercise its discretion to address the issue but apparently is unwilling to do so. See Wis. Stat. § 809.62(6). If it did address the issue, the result of the case would be different.

Kolupar, 266 Wis. 2d 659, ¶ 34.

See State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682 N.W.2d 12; State v. Evans, 2004 WI 84, 273 Wis. 2d 192, 682 N.W.2d 784.

Kolupar, 266 Wis. 2d 659, ¶¶ 24, 27.

Shands v. Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506 (1983).